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Public Sector Labour Relations Transition Act, 1997

S.O. 1997, CHAPTER 21
Schedule B

Consolidation Period: From April 24, 2014 to the e-Laws currency date.

Last amendment: 2014, c. 5, s. 53.

SKIP TABLE OF CONTENTS

CONTENTS

Interpretation

1.

Purposes

2.

Definitions

Application

3.

Municipal sector

4.

New City of Toronto

5.

Local boards of the new city

6.

New Toronto Hydro-Electric Commission

7.

School sector

8.

Hospital sector

9.

Application of Act to health sector

10.

Application in other circumstances

11.

Crown bound

12.

Limited application re sale of a business

13.

Labour Relations Act, 1995

Status of Collective Agreements, etc., on the Changeover Date

14.

Bargaining units

15.

Collective agreements

16.

Successor employer, hiring employees

17.

Bargaining rights under other Acts

18.

Termination of certain proceedings

19.

Right to take industrial action

Modification of the Act to Partial Integrations

19.1

Application

19.2

Bargaining units at successor employer

19.3

Application of certain provisions

19.4

Conciliation officer

19.5

Duty to bargain

19.6

Interest arbitrations

Alterations to Bargaining Units, etc., after the Changeover Date

20.

Agreement re: change to bargaining units

21.

Agreement re: change of bargaining agents

22.

Order re change to bargaining units

23.

Order re change of bargaining agents

24.

Continued and composite agreements

25.

Seniority provisions

26.

Grievance provisions

27.

Application to Board, dispute re s. 24, 25 or 26

28.

Restriction re certification applications

Replacing Collective Agreements

29.

Agreement to replace composite agreement

30.

Order to replace composite agreement

31.

Notice to bargain, continued agreements

32.

Application of s. 43 of the Labour Relations Act, 1995

Seniority of Employees in a Bargaining Unit

33.

Mandatory rules for determining seniority

34.

Order re replacement agreement

35.

Order after notice to bargain

36.

Requirements after sale of a business

Administration and Enforcement

37.

Ontario Labour Relations Board

38.

Arbitration Act, 1991

General

39.

Conflicting rules: Acts, regulations, human resources plans

40.

Regulations

Interpretation

Purposes

1.The following are the purposes of this Act:

1. To encourage best practices that ensure the delivery of quality and effective public services that are affordable for taxpayers.

2. To facilitate the establishment of effective and rationalized bargaining unit structures in restructured broader public sector organizations.

3. To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees following restructuring in the broader public sector and in other specified circumstances.

4. To foster the prompt resolution of workplace disputes arising from restructuring. 1997, c. 21, Sched. B, s. 1.

Definitions

2.  In this Act,

“Board” means the Ontario Labour Relations Board; (“Commission”)

“business” includes a part or parts thereof and an undertaking within the meaning of subsection 10 (4) of the Crown Employees Collective Bargaining Act, 1993; (“entreprise”)

“composite agreement” means the collective agreement that is deemed to exist under subsection 24 (5); (“convention mixte”)

“health services integration” means an integration that affects the structure or existence of one or more employers or that affects the provision of programs, services or functions by the employers, including but not limited to an integration that involves a dissolution, amalgamation, division, rationalization, consolidation, transfer, merger, commencement or discontinuance, where every employer subject to the integration is either,

(a) a health service provider within the meaning of the Local Health System Integration Act, 2006, or

(b) an employer whose primary function is or, immediately following the integration, will be the provision of services within or to the health services sector; (“intégration des services de santé”)

“hospital” means a hospital as defined in section 1 of the Public Hospitals Act, a private hospital operating under a licence issued under the Private Hospitals Act, a psychiatric facility listed in Schedule 1 to Regulation 741 of the Revised Regulations of Ontario, 1990 (“Application of Act”) made under the Mental Health Act and the Alcoholism and Drug Addiction Research Foundation; (“hôpital”)

“local board” means a local board as defined in section 1 of the Municipal Affairs Act but does not include a school board or a police services board; (“conseil local”)

“lock-out” means lock-out as defined in subsection 1 (1) of the Labour Relations Act, 1995; (“lock-out”)

“predecessor employer” means a predecessor employer under section 3, 4, 5, 6, 7, 8, 9 or 10; (“employeur précédent”)

“replacement agreement” means a collective agreement that replaces a composite agreement as a result of an agreement under section 29 or an order under section 30; (“convention de remplacement”)

“sells” includes leases, transfers, including transfers within the meaning of subsection 10 (4) of the Crown Employees Collective Bargaining Act, 1993, and any other manner of disposition, and “sold” and “sale” have corresponding meanings; (“vend”, “vendu”, “vente”)

“strike” means a strike as defined in subsection 1 (1) of the Labour Relations Act, 1995; (“grève”)

“successor employer” means a successor employer under section 3, 4, 5, 6, 7, 8, 9 or 10; (“employeur qui succède”)

“transitional period” means the period beginning on the day that this section comes into force and ending on December 31, 2001 or on such later date as may be prescribed. (“période de transition”) 1997, c. 21, Sched. B, s. 2; 2002, c. 17, Sched. F, Table; 2006, c. 4, s. 42 (1); 2006, c. 35, Sched. D, s. 4.

Application

Municipal sector

3.  (1)  This Act applies upon,

(a) the amalgamation of two or more municipalities or two or more local boards;

(b) the dissolution of two or more municipalities and the incorporation of their inhabitants into a new municipality;

(c) the dissolution of two or more local boards and the establishment of a new local board that assumes the powers and authority of the dissolved local boards; or

(d) the dissolution of an upper-tier municipality if, as part of that restructuring, two or more municipalities that form part of the upper-tier municipality for municipal purposes are amalgamated or are dissolved and their inhabitants incorporated into a new municipality. 1997, c. 21, Sched. B, s. 3 (1); 2006, c. 4, s. 42 (2).

Predecessor and successor employers

(2)  Subject to subsection (2.1), for the purposes of this Act,

(a) the municipalities or local boards that are amalgamated and the municipalities or local boards that are dissolved are the predecessor employers; and

(b) the municipality or local board that exists when the amalgamation takes effect, the new municipality that is incorporated or the local board that assumes the power or authority of the dissolved local boards is the successor employer. 1997, c. 21, Sched. B, s. 3 (2); 1999, c. 14, Sched. F, s. 8 (1).

Same

(2.1)  For the purposes of this Act, if events described in clauses (1) (b) and (c) occur on the same changeover date and if the new local board that assumes the powers and authority of the dissolved local boards is a local board of the new municipality, the following are the predecessor and successor employers in the circumstances described:

1. If an employee of a dissolved municipality becomes an employee of a local board of the new municipality on the changeover date, the dissolved municipality is the predecessor employer and the local board is the successor employer.

2. If an employee of a dissolved local board becomes an employee of the new municipality on the changeover date, the dissolved local board is the predecessor employer and the new municipality is the successor employer. 1999, c. 14, Sched. F, s. 8 (2).

Same

(3)  For the purposes of this Act, in the case of a restructuring described in clause (1) (d),

(a) the upper-tier municipality that is dissolved and the municipalities that are amalgamated or dissolved are predecessor employers; and

(b) the municipalities that exist when the amalgamation takes effect or the new municipalities that are incorporated and any other persons prescribed in connection with the restructuring are successor employers. 1997, c. 21, Sched. B, s. 3 (3).

Changeover date

(4)For the purposes of this Act, the changeover date is the date on which the amalgamation or dissolution takes effect. 1997, c. 21, Sched. B, s. 3 (4).

New City of Toronto

4.  (1)  In this section and sections 5 and 6,

City of Toronto Act, 1997” means that Act as it read on the day before its repeal by the Stronger City of Toronto for a Stronger Ontario Act, 2006; (“Loi de 1997 sur la cité de Toronto”)

“local board” means local board as defined in section 1 of the City of Toronto Act, 1997 but does not include a police services board; (“conseil local”)

“new City of Toronto” or “new city” means the City of Toronto incorporated by the City of Toronto Act, 1997; (“nouvelle cité de Toronto”, “nouvelle cité”)

“old municipalities” means old municipalities as defined in section 1 of the City of Toronto Act, 1997. (“anciennes municipalités”) 1997, c. 21, Sched. B, s. 4 (1); 2006, c. 32, Sched. C, s. 54.

Application to new city

(2)  This Act applies upon the incorporation of the new City of Toronto. 1997, c. 21, Sched. B, s. 4 (2).

Predecessor and successor employers

(3)  For the purposes of this Act, the old municipalities are the predecessor employers and the new city is the successor employer. 1997, c. 21, Sched. B, s. 4 (3).

Changeover date

(4)  For the purposes of this Act, the changeover date is January 1, 1998. 1997, c. 21, Sched. B, s. 4 (4).

Local boards of the new city

5. (1)This Act applies upon the establishment of a local board of the new City of Toronto to which the employees of one or more local boards of the old municipalities are transferred during the transitional period.

Predecessor and successor employers

(2)For the purposes of this Act, the local boards of the old municipalities are the predecessor employers and the local board of the new city is the successor employer.

Changeover date

(3)For the purposes of this Act, the changeover date is the earliest date on which employees are transferred to the local board of the new city. 1997, c. 21, Sched. B, s. 5.

New Toronto Hydro-Electric Commission

6. (1)This Act applies upon the establishment of the Toronto Hydro-Electric Commission under section 9 of the City of Toronto Act, 1997.

Predecessor and successor employers

(2)For the purposes of this Act, the predecessor employers are the public utilities commissions dissolved under subsection 28 (3) of the City of Toronto Act, 1997 and the new Commission is the successor employer.

Changeover date

(3)For the purposes of this Act, the changeover date is January 1, 1998. 1997, c. 21, Sched. B, s. 6.

School sector

7.  (1)  This Act applies upon the assumption by a district school board of the jurisdiction of two or more old boards or of the minority language section of two or more old boards.

Predecessor and successor employers

(2)  For the purposes of this Act, the old boards are the predecessor employers and the district school board is the successor employer. 1997, c. 21, Sched. B, s. 7 (1, 2).

Limitation on application

(3)  This Act does not apply in respect of members of a teachers’ bargaining unit within the meaning of the School Boards Collective Bargaining Act, 2014. 1997, c. 31, s. 168 (1); 2014, c. 5, s. 53.

Changeover date

(4)  For the purposes of this Act, the changeover date is January 1, 1998. 1997, c. 21, Sched. B, s. 7 (4).

Interpretation

(5)  The terms relating to education that are used in this section have the same meaning as in the Education Act. 1997, c. 31, s. 168 (2).

Hospital sector

8.  (1)  This Act applies upon the amalgamation of two or more hospital corporations. 1997, c. 21, Sched. B, s. 8 (1); 2006, c. 4, s. 42 (3).

Predecessor and successor employers

(2)  For the purposes of this Act, the corporations that are amalgamated are the predecessor employers and the corporation that exists when the amalgamation takes effect is the successor employer. 1997, c. 21, Sched. B, s. 8 (2).

Changeover date

(3)  For the purposes of this Act, the changeover date is the date on which the amalgamation takes effect. 1997, c. 21, Sched. B, s. 8 (3).

Definition

(4)  In this section,

“hospital corporation” means a corporation that operates a hospital. 1997, c. 21, Sched. B, s. 8 (4).

Application of Act to health sector

9.  (1)  An employer that is or will be subject to a health services integration or a bargaining agent that represents employees of such an employer may request the Board to make an order declaring that this Act applies to the health services integration in question. 2006, c. 4, s. 42 (4).

Board order

(2)  The Board may by order declare that this Act applies to a health services integration if requested to do so under subsection (1). 2006, c. 4, s. 42 (4).

Factors to consider

(3)  When deciding whether to make an order under this section, the Board shall consider the following factors and such other matters as it considers relevant:

1. The scope of agreements under which services, programs or functions are or will be shared by employers subject to the health services integration.

2. The extent to which employers subject to the health services integration have rationalized or will rationalize the provision of services, programs or functions.

3. The extent to which programs, services or functions have been or will be transferred among employers subject to the health services integration.

4. The extent of labour relations problems that have resulted or could result from the health services integration. 2006, c. 4, s. 42 (4).

Order – timing and terms

(4)  The Board may make an order,

(a) before or after the health services integration in question occurs; and

(b) on such terms as it considers appropriate. 2006, c. 4, s. 42 (4).

Predecessor and successor employers

(5)  Subject to subsection (5.1), the Board shall specify in an order which employers are the predecessor employers and which are the successor employers for the purposes of this Act. 2006, c. 4, s. 42 (4); 2006, c. 35, Sched. D, s. 5 (1).

Crown not successor employer

(5.1)  The Board shall not specify that the Crown is a successor employer. 2006, c. 35, Sched. D, s. 5 (2).

Changeover date

(6)  For the purposes of this Act, the changeover date is,

(a) the date specified in the order, which may be a date earlier than the date on which the order is made; or

(b) if there is no date specified in the order, the date on which the health services integration takes effect. 2006, c. 4, s. 42 (4).

(7)  Repealed: 2006, c. 35, Sched. D, s. 5 (3).

Application in other circumstances

10.  (1)  This Act applies in such other circumstances as may be prescribed upon the occurrence of a prescribed event. 1997, c. 21, Sched. B, s. 10 (1); 2006, c. 4, s. 42 (5).

Predecessor and successor employers

(2)  For the purposes of this Act, the predecessor and successor employers are the persons prescribed as such in connection with a prescribed event. 1997, c. 21, Sched. B, s. 10 (2).

Changeover date

(3)  For the purposes of this Act, the changeover date is the date prescribed as such in connection with a prescribed event. 1997, c. 21, Sched. B, s. 10 (3).

Crown bound

11.  (1)  This Act binds the Crown. 1997, c. 21, Sched. B, s. 11.

Crown not successor employer

(2)  Despite anything in this Act, the Crown shall not be considered a successor employer. 2006, c. 35, Sched. D, s. 6.

Limited application re sale of a business

12.  (1)  Section 36 (re seniority) of this Act applies with respect to the sale of a business, but only if the person to whom the business is sold is,

(a) a municipality or local board;

(b) a district school board as defined in subsection 1 (1) of the Education Act;

(c) a person who operates a hospital or who will do so following the sale; or

(d) a prescribed person or a member of a prescribed class of persons. 1997, c. 21, Sched. B, s. 12 (1); 2006, c. 4, s. 42 (6); 2006, c. 35, Sched. D, s. 7 (1).

Exception

(2)  Section 36 does not apply with respect to an event to which this Act applies,

(a) in accordance with sections 3 to 10; or

(b) in accordance with the Local Health System Integration Act, 2006. 2006, c. 4, s. 42 (7).

(3)  Repealed: 2006, c. 35, Sched. D, s. 7 (2).

Application, even if no bargaining agent

(4)  Section 36 applies to a sale of a business whether or not any employees of the seller are represented by a bargaining agent. 1997, c. 21, Sched. B, s. 12 (4).

Labour Relations Act, 1995

13.  (1)  Subject to subsection (2), section 69 of the Labour Relations Act, 1995 does not apply with respect to an event to which this Act applies,

(a) in accordance with sections 3 to 10; or

(b) in accordance with the Local Health System Integration Act, 2006. 2006, c. 4, s. 42 (8); 2006, c. 35, Sched. D, s. 8 (1).

Same

(2)  If the Crown would, in the absence of subsection 11 (2), be a successor employer on the occurrence of an event described in subsection (1), the following apply:

1. Nothing in this Act shall be interpreted to prevent the application of section 69 of the Labour Relations Act, 1995 with respect to,

i. the Crown and the event, or

ii. the Crown and the part of the event that pertains to the Crown, if there are other successor employers.

2. If one or more employers other than the Crown are successor employers on the occurrence of the event, section 69 of the Labour Relations Act, 1995 does not apply with respect to those employers and the part of the event that pertains to them. 2006, c. 35, Sched. D, s. 8 (2).

Status of Collective Agreements, etc., on the Changeover Date

Bargaining units

14.  (1)  On the changeover date, each bargaining agent that had bargaining rights in respect of a bargaining unit of a predecessor employer immediately before the changeover date has bargaining rights in respect of a like bargaining unit of the successor employer, but the description of the bargaining unit shall be such as to include only,

(a) employees who immediately before the changeover date were employees of the predecessor employer in the bargaining unit for which the bargaining agent had bargaining rights; and

(b) employees who are hired to replace employees described in clause (a). 1997, c. 21, Sched. B, s. 14 (1).

(2)  Repealed: 2006, c. 35, Sched. D, s. 9 (1).

Exclusion of certain employees

(3)  For greater certainty, none of the following, other than employees described in clause (1) (b), become members of a bargaining unit as a result of the operation of this section:

1. Repealed: 2006, c. 35, Sched. D, s. 9 (2).

2. An employee of the successor employer who, immediately before the changeover date, was not employed in a bargaining unit of a predecessor employer. 1997, c. 21, Sched. B, s. 14 (3); 2006, c. 35, Sched. D, s. 9 (2).

Collective agreements

15.  (1)  The collective agreement, if any, that applies with respect to employees of a predecessor employer immediately before the changeover date continues to apply with respect to those employees who are employed by the successor employer on or after the changeover date and with respect to employees hired by the successor employer to replace such employees. 1997, c. 21, Sched. B, s. 15 (1).

Expired agreements

(2)  If no collective agreement is in operation immediately before the changeover date, the most recent collective agreement, if any, shall be deemed to be in effect from the changeover date for the purposes of this Act and subsection (1) applies with necessary modifications. 1997, c. 21, Sched. B, s. 15 (2).

Status of successor employer

(3)  The successor employer is bound by the collective agreement as if he, she or it had been a party to it. The successor employer shall be deemed to be the employer under the collective agreement. 1997, c. 21, Sched. B, s. 15 (3).

New bargaining agents

(4)  If a bargaining agent has bargaining rights under section 14 but there has never been a collective agreement between the bargaining agent and the predecessor employer that applied to employees in the like bargaining unit of the predecessor employer or after the changeover date a bargaining agent is certified or voluntarily recognized as the bargaining agent for a bargaining unit of the successor employer but there has never been a collective agreement between the bargaining agent and the successor employer, the following rules apply:

1. Before a collective agreement applying to the employees in the bargaining unit of the successor employer comes into effect, the employer shall not, without the consent of the bargaining agent, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer, the bargaining agent or the employees in the bargaining unit unless and until the right of the bargaining agent to represent the employees is terminated.

2. Before a collective agreement applying to the employees in the bargaining unit of the successor employer comes into effect, the bargaining agent shall not, without the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the bargaining agent or the employees in the bargaining unit. 1997, c. 21, Sched. B, s. 15 (4).

(5)  Repealed: 2006, c. 35, Sched. D, s. 10 (1).

Employees not in bargaining unit

(6)  The terms and conditions of employment of an employee of the successor employer who is not in a bargaining unit are the terms and conditions of his or her contract of employment, as it may be amended from time to time. 1997, c. 21, Sched. B, s. 15 (6).

Hiring, continued employment

(7)  No provision of a collective agreement that binds a successor employer under this section shall be applied so as to prevent the successor employer from hiring or continuing to employ an individual to perform work or assigning work to an individual if,

(a) immediately before the changeover date the individual was employed by a predecessor employer but was not employed in a bargaining unit; and

(b) the work the individual performs for the successor employer is essentially the same work that the individual performed immediately before the changeover date for the predecessor employer. 1997, c. 21, Sched. B, s. 15 (7); 2006, c. 35, Sched. D, s. 10 (2).

Same

(8)  Subsection (7) ceases to apply if section 25 applies. 1997, c. 21, Sched. B, s. 15 (8).

Successor employer, hiring employees

16.Nothing in this Act requires a successor employer to hire any employee of a predecessor employer except to the extent that the successor employer may be required to do so under a collective agreement that binds the successor employer. 1997, c. 21, Sched. B, s. 16.

Bargaining rights under other Acts

17.If, under this Act, a trade union is made the bargaining agent of the employees in a bargaining unit, the trade union shall be deemed to have been certified or chosen as such for the purposes of the Fire Protection and Prevention Act, 1997, the Labour Relations Act, 1995 and the Police Services Act. 1997, c. 21, Sched. B, s. 17.

Termination of certain proceedings

18. (1)On the changeover date, the appointment of a conciliation officer under section 49 of the Fire Protection and Prevention Act, 1997, section 18 of the Labour Relations Act, 1995 or section 121 of the Police Services Act for the purpose of endeavouring to effect a collective agreement between a predecessor employer and a bargaining agent with respect to employees described in subsection 14 (1) is terminated.

No appointments

(2)No conciliation officer shall be appointed in respect of a dispute concerning a collective agreement for a bargaining unit on or after the changeover date unless the description of the bargaining unit is agreed upon by the employer and the bargaining agent under section 20 or the description of the bargaining unit is determined in an order under section 22.

Duty to bargain terminated

(3)No bargaining agent is under an obligation to bargain as a result of a notice to bargain given by a predecessor employer and no successor employer is under an obligation to bargain as a result of a notice to bargain given to a predecessor employer.

No notice to bargain to be given

(4)No bargaining agent or employer shall give notice to bargain for a collective agreement for a bargaining unit under section 47 of the Fire Protection and Prevention Act, 1997 or section 16 or 59 of the Labour Relations Act, 1995 on or after the changeover date unless the description of the bargaining unit is agreed upon by the employer and the bargaining agent under section 20 or the description of the bargaining unit is determined in an order under section 22.

Same, interest arbitrations

(5)On the changeover date, interest arbitrations in which a final decision has not been issued are terminated in relation to a predecessor or successor employer. 1997, c. 21, Sched. B, s. 18.

Right to take industrial action

Right to strike

19. (1)No employee who is a member of a bargaining unit established under this Act shall strike against a successor employer unless notice to bargain is given under this or another Act after the changeover date. An employee’s right, if any, to strike after that date is determined under the Act that otherwise governs collective bargaining for him or her.

Right to lock-out

(2)No successor employer shall lock out an employee who is a member of a bargaining unit established under this Act unless notice to bargain is given under this or another Act after the changeover date. The employer’s right, if any, to lock out employees after that date is determined under the Act that otherwise governs collective bargaining in respect of the employees.

Enforcement

(3)Sections 81 to 85 and 100 to 108 of the Labour Relations Act, 1995 apply with necessary modifications with respect to the enforcement of this section. 1997, c. 21, Sched. B, s. 19.

Modification of the Act to Partial Integrations

Application

19.1  (1)  This section and sections 19.2 to 19.6 clarify how sections 14 to 18 of this Act shall be modified to apply in the case of a partial integration. 2006, c. 4, s. 42 (9).

Interpretation

(2)  In this section and in sections 19.2 to 19.6,

“non-affected bargaining unit” means, with respect to a predecessor employer that is subject to a partial integration, a bargaining unit of the employer in respect of which none of the programs, services or functions performed by employees in the unit are transferred to or otherwise integrated with a successor employer; (“unité de négociation non touchée”)

“partial integration” means an event to which this Act applies where,

(a) some or all of the programs, services or functions performed by employees in a particular bargaining unit at a predecessor employer are transferred to or otherwise integrated with a successor employer, and

(b) on and after the changeover date, the predecessor employer continues to operate; (“intégration partielle”)

“predecessor bargaining unit” means a bargaining unit of a predecessor employer in respect of which,

(a) a bargaining agent has bargaining rights, and

(b) some or all of the programs, services or functions performed by employees in the unit are transferred to or otherwise integrated with a successor employer; (“unité de négociation précédente”)

“successor bargaining unit” means a bargaining unit of a successor employer in respect of which, on and after the changeover date, a bargaining agent has bargaining rights in accordance with subsection 19.2 (2). (“unité de négociation qui succède”) 2006, c. 4, s. 42 (9).

Bargaining units at successor employer

19.2  (1)  Subsection 14 (1) applies to a partial integration in accordance with this section. 2006, c. 4, s. 42 (9).

Same

(2)  On the changeover date, each bargaining agent that has bargaining rights in respect of a predecessor bargaining unit immediately before the changeover date has bargaining rights in respect of a like bargaining unit at the successor employer, but the description of the bargaining unit shall be such as to include only,

(a) employees who, immediately before the changeover date,

(i) were employees of the predecessor employer in the bargaining unit for which the bargaining agent has bargaining rights, and

(ii) were employed in the delivery of programs, services or functions that are being transferred to or otherwise integrated with the successor employer; and

(b) employees who are hired to replace employees described in clause (a). 2006, c. 4, s. 42 (9).

No rights re non-affected bargaining unit

(3)  For greater certainty, a bargaining agent that has bargaining rights in respect of a non-affected bargaining unit does not have bargaining rights in respect of a like bargaining unit at the successor employer on the changeover date. 2006, c. 4, s. 42 (9).

Application of certain provisions

19.3  Subsection 14 (3) and sections 15, 16 and 17 apply, with necessary modifications, to a partial integration. 2006, c. 4, s. 42 (9); 2006, c. 35, Sched. D, s. 11.

Conciliation officer

19.4  (1)  Subsections 18 (1) and (2) apply to a partial integration in accordance with this section. 2006, c. 4, s. 42 (9).

Existing appointment

(2)  Where a conciliation officer has been appointed under section 49 of the Fire Protection and Prevention Act, 1997, section 18 of the Labour Relations Act, 1995 or section 121 of the Police Services Act for the purpose of endeavouring to effect a collective agreement between a predecessor employer and a bargaining agent that has bargaining rights in respect of a predecessor bargaining unit or a non-affected bargaining unit, the appointment continues to be valid on the changeover date with respect to those parties. 2006, c. 4, s. 42 (9).

Same – successor employer

(3)  A conciliation officer described in subsection (2) has no status with respect to a successor employer and a bargaining agent that has bargaining rights in respect of a successor bargaining unit and his or her appointment shall not be interpreted as giving him or her the authority to endeavour to effect a collective agreement between those parties. 2006, c. 4, s. 42 (9).

No appointments

(4)  Subsection 18 (2) applies, with necessary modifications, with respect to a successor bargaining unit and no conciliation officer shall be appointed in respect of a dispute concerning a collective agreement for a successor bargaining unit on or after the changeover date unless the conditions described in subsection 18 (2) are satisfied. 2006, c. 4, s. 42 (9).

Duty to bargain

19.5  (1)  Subsections 18 (3) and (4) apply to a partial integration in accordance with this section. 2006, c. 4, s. 42 (9).

Existing notice to bargain

(2)  If, before the changeover date, a notice to bargain had been given by either of a predecessor employer or a bargaining agent that had bargaining rights in respect of a predecessor bargaining unit or a non-affected bargaining unit to the other, the notice continues to be valid between those parties on the changeover date. 2006, c. 4, s. 42 (9).

Same – successor employer

(3)  A notice to bargain described in subsection (2) does not apply with respect to a successor employer and the bargaining agent that has bargaining rights in respect of a successor bargaining unit and neither of those parties is under an obligation to bargain as a result of the notice. 2006, c. 4, s. 42 (9).

New notice to bargain – predecessor employer

(4)  Subsection 18 (4) does not apply with respect to a predecessor employer and a bargaining agent that has bargaining rights in respect of a predecessor bargaining unit or non-affected bargaining unit and either of those parties may give notice to bargain for a collective agreement on or after the changeover date if entitled to do so under section 47 of the Fire Protection and Prevention Act, 1997 or under section 16 or 59 of the Labour Relations Act, 1995. 2006, c. 4, s. 42 (9).

Same – successor employer

(5)  Subsection 18 (4) applies, with necessary modifications, with respect to a successor employer and a bargaining agent that has bargaining rights in respect of a successor bargaining unit and neither of those parties shall give notice to bargain for a collective agreement unless the conditions described in subsection 18 (4) are satisfied. 2006, c. 4, s. 42 (9).

Interest arbitrations

19.6  (1)  Subsection 18 (5) applies to a partial integration in accordance with this section. 2006, c. 4, s. 42 (9).

Existing arbitrations

(2)  Subsection 18 (5) does not apply with respect to a predecessor employer and a bargaining agent that has bargaining rights in respect of a predecessor bargaining unit or non-affected bargaining unit and interest arbitrations in relation to those parties in which a final decision was not issued before the changeover date continue on and after the changeover date unless the arbitrations are otherwise lawfully terminated. 2006, c. 4, s. 42 (9).

Same – further submissions

(3)  With respect to interest arbitrations described in subsection (2) in which the parties are a predecessor employer and a bargaining agent that has bargaining rights in respect of a predecessor bargaining unit, the arbitrator or arbitration board shall not issue a final decision without giving those parties full opportunity to make further submissions that address the partial integration, regardless of whether the time in which parties were permitted to present evidence and make submissions in the arbitrations has passed. 2006, c. 4, s. 42 (9).

Procedure

(4)  An arbitrator or arbitration board shall determine its own procedure for the purposes of subsection (3). 2006, c. 4, s. 42 (9).

Arbitrations – successor employer

(5)  Interest arbitrations in relation to a predecessor employer and a bargaining agent that has bargaining rights in respect of a predecessor bargaining unit in which a final decision was not issued before the changeover date do not apply in relation to a successor employer and a bargaining agent that has bargaining rights in respect of a successor bargaining unit and the previous appointment of an arbitrator or arbitration board shall not be interpreted as giving it the authority to make a decision respecting the successor employer and bargaining unit. 2006, c. 4, s. 42 (9).

Alterations to Bargaining Units, etc., after the Changeover Date

Agreement re: change to bargaining units

20. (1)On or after the changeover date, a successor employer and all of the bargaining agents that represent employees of the successor employer to whom the Labour Relations Act, 1995 applies may agree to change the number and description of the bargaining units in respect of which the bargaining agents have bargaining rights.

Same

(2)Despite subsection (1), a successor employer and two or more but not all of the bargaining agents that represent employees of the successor employer to whom the Labour Relations Act, 1995 applies may agree to change the number and description of the bargaining units in respect of which they have bargaining rights if the agreement does not change or affect the description of any other bargaining unit and does not result in employees who were not in any bargaining unit being included in a bargaining unit.

Firefighters

(3)Subsections (1) and (2) apply, with necessary modifications, in respect of employees to whom the Fire Protection and Prevention Act, 1997 applies.

Agreement not to change

(4)On or after the changeover date, the employer and a bargaining agent may agree not to change the description of the bargaining unit in respect of which the bargaining agent has bargaining rights.

Restriction re description

(5)An agreement must not result in a bargaining unit that includes employees whose labour relations are governed by the Fire Protection and Prevention Act, 1997 or the Hospital Labour Disputes Arbitration Act together with employees whose labour relations are not governed by the same Act.

Exception

(6)Despite subsection (5), an agreement may result in a bargaining unit that includes employees whose labour relations are governed by the Hospital Labour Disputes Arbitration Act together with employees whose labour relations are not governed by that Act if one of the bargaining agents that is a party to the agreement has bargaining rights under section 14 in respect of such a unit of the successor employer and the bargaining unit that results from the agreement includes only employees who, before the agreement comes into effect,

(a) are in a bargaining unit that includes employees whose labour relations are governed by the Hospital Labour Disputes Arbitration Act together with employees whose labour relations are not governed by that Act; or

(b) are not in a bargaining unit.

Commencement

(7)An agreement does not come into effect until it is executed by the employer and every bargaining agent that is a party to the agreement.

Same

(8)An agreement described in subsection (1) or (2) does not come into effect until the related agreement under section 21 or the related order under section 23 comes into effect. 1997, c. 21, Sched. B, s. 20.

Agreement re: change of bargaining agents

21. (1)If an agreement is made under section 20, all of the bargaining agents that are parties to the agreement may agree upon which bargaining agent will represent each bargaining unit that results from the agreement.

Commencement

(2)An agreement under this section does not come into effect until it is executed by every bargaining agent that is a party to the agreement and a copy of it is given to the successor employer.

Effect of agreement

(3)When the agreement comes into effect, the agreed bargaining agent is the only bargaining agent representing the employees in a bargaining unit. All other bargaining agents cease to represent the employees in the unit.

Request for order

(4)If no agreement is in effect within 10 days after the related agreement under section 20 is executed, the successor employer or a bargaining agent may request the Board to determine which of the bargaining agents represents each bargaining unit that results from the agreement. 1997, c. 21, Sched. B, s. 21.

Order re change to bargaining units

22. (1)Subject to any agreement under section 20 that is in effect, the Board, upon the application of a successor employer or any bargaining agent that has bargaining rights, may by order determine the number and description of bargaining units that are appropriate for the successor employer’s operations after the occurrence of an event to which this Act applies. 1997, c. 21, Sched. B, s. 22 (1); 2006, c. 4, s. 42 (10).

Professional units

(2)Nothing in this section prevents the Board from making an order that results in a bargaining unit of employees who are members of a profession and engaged in a professional capacity and who for that reason commonly bargain separately and apart from other employees through a bargaining agent that according to established trade union practice pertains to the profession unless such an order would result in an unduly fragmented bargaining unit structure. 1997, c. 21, Sched. B, s. 22 (2).

Construction

(3)If the employees in a bargaining unit perform construction work and are represented by a construction union, the Board shall, in making an order under subsection (1), have regard to decisions made by it relating to the description of bargaining units on applications under section 158 of the Labour Relations Act, 1995 and predecessors of that section, but the Board is not required to follow those decisions if the Board is of the view that it would not be appropriate to do so. 1997, c. 21, Sched. B, s. 22 (3).

Definitions

(4)In subsection (3),

“construction union” means a trade union or council of trade unions, both as defined in section 126 of the Labour Relations Act, 1995 or an affiliated bargaining agent or employee bargaining agency, both as defined in section 151 of that Act; (“syndicat de la construction”)

“construction work” means constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site. (“travaux de construction”) 1997, c. 21, Sched. B, s. 22 (4).

Restriction

(5)An order under subsection (1) must not result in a bargaining unit that includes employees whose labour relations are governed by the Fire Protection and Prevention Act, 1997 or the Hospital Labour Disputes Arbitration Act together with employees whose labour relations are not governed by the same Act. 1997, c. 21, Sched. B, s. 22 (5).

Exception

(6)Despite subsection (5), an order under subsection (1) may result in a bargaining unit that includes employees whose labour relations are governed by the Hospital Labour Disputes Arbitration Act together with employees whose labour relations are not governed by that Act if,

(a) a bargaining unit of a predecessor employer included employees whose labour relations were governed by the Hospital Labour Disputes Arbitration Act together with employees whose labour relations were not governed by that Act; and

(b) the Board is of the view that it would be appropriate to issue such an order. 1997, c. 21, Sched. B, s. 22 (6).

Purposes

(7)In making a determination under this section, the Board shall have regard to the purposes of this Act. 1997, c. 21, Sched. B, s. 22 (7).

Commencement

(8)The order comes into effect at the same time as the related order under section 23. 1997, c. 21, Sched. B, s. 22 (8).

Order re change of bargaining agents

23.  (1)  Following a request under subsection 21 (4) or when making an order under section 22, the Board shall determine which one of the bargaining agents, if any, represents the employees in each bargaining unit whose description is changed by the agreement under section 20 or the order under section 22. 1997, c. 21, Sched. B, s. 23 (1).

Representation vote

(2)  The Board shall make the determination by conducting a vote or votes of the employees in each bargaining unit. 1997, c. 21, Sched. B, s. 23 (2).

Result of vote

(3)  The order must appoint as bargaining agent for a bargaining unit the candidate that receives the greatest number of votes, if the candidate receives more than 50 per cent of the votes cast. 1997, c. 21, Sched. B, s. 23 (3).

(4)  Repealed: 2006, c. 35, Sched. D, s. 12.

Same

(5)  If 40 per cent or more of the employees in the bargaining unit were not represented by a bargaining agent immediately before the changeover date, the ballot must include having no bargaining agent as a choice. 1997, c. 21, Sched. B, s. 23 (5).

(6)  Repealed: 2006, c. 35, Sched. D, s. 12.

Same, bargaining unit terminated

(7)  If more than 50 per cent of the votes cast are in favour of having no bargaining agent, the order must provide that there is no bargaining agent representing the employees in the bargaining unit. 1997, c. 21, Sched. B, s. 23 (7).

Same

(8)  When an order described in subsection (7) is made, every collective agreement that applied to the employees in the bargaining unit ceases to operate and the bargaining rights of the existing bargaining agents are terminated. 1997, c. 21, Sched. B, s. 23 (8).

Effect of order

(9)  When an order is made under subsection (1) determining that a bargaining agent represents the employees in a bargaining unit, the bargaining rights of every other bargaining agent with respect to the employees in the bargaining unit are terminated. 1997, c. 21, Sched. B, s. 23 (9).

No vote if no change in bargaining units

(10)  No vote is required if the order made under section 22 does not change the number, or description of the bargaining units. In that case, the order under this section must provide that the existing bargaining agents continue to represent the employees in the bargaining units. 1997, c. 21, Sched. B, s. 23 (10).

Same, agreement of bargaining agents

(11)  Subject to subsection (12), no vote is required with respect to a bargaining unit if all of the bargaining agents that represented any of the employees in the unit before the order was made under section 22 agree upon the bargaining agent (from among their number) to represent the employees in the unit and less than 40 per cent of the employees in the bargaining unit were not represented by a bargaining agent immediately before the changeover date. In that case, the order under this section must appoint the agreed bargaining agent. 1997, c. 21, Sched. B, s. 23 (11).

(12)  Repealed: 2006, c. 35, Sched. D, s. 12.

Voting practices and procedures

(13)  The Board shall determine the practices and procedures to be used in conducting a vote under this section. The voting must be conducted so as to ensure that one of the choices or candidates on the ballot ultimately receives more than 50 per cent of the votes cast. 1997, c. 21, Sched. B, s. 23 (13).

Conduct of vote in certain cases

(14)  If 40 per cent or more of the employees in the bargaining unit were, immediately before the changeover date, not represented by a bargaining agent or are employees described in subsection (4) and there were at least two bargaining agents that, immediately before the changeover date, represented employees in the bargaining unit, the following apply with respect to the conduct of the vote under this section:

1. The vote must consist of succeeding votes.

2. In the first vote, the choices on the ballot must be having no bargaining agent as one choice and each of the bargaining agents, each as a separate choice.

3. Every choice on the ballot in a vote, other than the choice with the fewest votes cast in its favour, must be included in the ballot for the immediately succeeding vote. 1997, c. 21, Sched. B, s. 23 (14).

Secret ballot

(15)  A vote shall be by ballots cast in such a manner that individuals expressing their choice cannot be identified with the choice made. 1997, c. 21, Sched. B, s. 23 (15).

Contents of ballot

(16)  The Board shall by order determine the choices and candidates for bargaining agent that are to appear on the ballot and shall do so in accordance with its practices and procedures. 1997, c. 21, Sched. B, s. 23 (16).

Eligibility

(17)  The Board may determine, in its discretion, who is eligible to vote. 1997, c. 21, Sched. B, s. 23 (17).

Orders and defects in voting

(18)  No order of the Board appointing a bargaining agent shall be set aside on the ground of any defect or irregularity in a vote if the Board is satisfied that the results of the vote reflect the true wishes of the majority of the employees in the bargaining unit. 1997, c. 21, Sched. B, s. 23 (18).

Enquiry into defects in voting

(19)  The Board is not required to enquire into any allegation of a defect or irregularity in a vote if the Board is satisfied that, whether or not the alleged defect or irregularity existed, the results of the vote reflect the true wishes of the majority of the employees in the bargaining unit. 1997, c. 21, Sched. B, s. 23 (19).

Continued and composite agreements

24. (1)This section applies if a new bargaining unit is established or the description of a bargaining unit is changed by an agreement under section 20 or an order under section 22.

Individual collective agreements continued

(2)The collective agreement that applies with respect to a member of the bargaining unit immediately before the agreement under section 20 or the order under section 22 comes into effect continues to apply with respect to him or her after the agreement or order comes into effect.

Expired agreements

(3)If no collective agreement is in effect with respect to a member of the bargaining unit immediately before the agreement or order comes into effect, but a collective agreement was in effect or was deemed to be in effect at any time after the changeover date, that agreement shall be deemed to continue for the purposes of this section and subsection (2) applies with necessary modifications.

If no prior collective agreement

(4)If no collective agreement is in effect with respect to a member of the bargaining unit immediately before the agreement or order comes into effect, and no collective agreement was in effect or deemed to be in effect at any time after the changeover date, the terms and conditions of the employee’s employment are the terms and conditions of his or her contract of employment as it may be amended from time to time until a collective agreement applicable to all employees in the bargaining unit is adopted under section 29 or imposed under section 30 or made following the giving of notice to bargain under this Act or another Act.

Composite agreement

(5)If as a result of the application of subsection (2) more than one collective agreement will apply in the bargaining unit, the provisions of each collective agreement are deemed to form one part of a single collective agreement to which the bargaining agent representing the employees in the new bargaining unit and the successor employer are parties.

Parties

(6)Only the successor employer and the bargaining agent representing the employees in the bargaining unit are parties to a composite agreement.

Term of agreement

(7)A collective agreement described in subsection (2) or a composite agreement ceases to operate one year after the date on which the agreement under section 20 or the order under section 22 comes into effect, or on such other date as the parties may agree upon in writing.

Same re police

(8)Subsection (7) shall not be interpreted so as to affect the operation of section 129 of the Police Services Act. 1997, c. 21, Sched. B, s. 24.

Seniority provisions

25. (1)This section applies if a new bargaining unit is established or the description of a bargaining unit is changed by an agreement under section 20 or an order under section 22 and a collective agreement containing seniority provisions applies to any employees in the new bargaining unit or the bargaining unit whose description is changed.

If one collective agreement applies

(2)If only one collective agreement containing seniority provisions applies to any employees in the bargaining unit, the seniority provisions in it apply to all employees in the bargaining unit.

If two or more agreements apply

(3)If two or more collective agreements containing seniority provisions apply to employees in the bargaining unit the following apply:

1. If the bargaining agent representing the employees in the bargaining unit was a party to one of the collective agreements immediately before the changeover date, the seniority provisions contained in that collective agreement apply to all employees in the bargaining unit.

2. If the bargaining agent representing the employees in the bargaining unit was a party to more than one of the collective agreements immediately before the changeover date, the employer and the bargaining agent may agree as to which collective agreement’s seniority provisions will apply to the employees in the bargaining unit or, if they do not agree, either of them may apply to the Board for an order determining which collective agreement’s seniority provisions will apply to the employees in the bargaining unit.

New bargaining agent

(4)If two or more collective agreements containing seniority provisions apply to employees in the bargaining unit but the bargaining agent representing the employees in the bargaining unit was not a party to any of them immediately before the changeover date, the employer and the bargaining agent may agree as to which collective agreement’s seniority provisions will apply to the employees in the bargaining unit or, if they do not agree, either of them may apply to the Board for an order determining which collective agreement’s seniority provisions will apply to the employees in the bargaining unit.

Application of subs. 33 (3), (4)

(5)Subsections 33 (3) and (4) apply, with necessary modifications, to all employees in the bargaining unit.

Other seniority provisions voided

(6)If a seniority provision that would not apply to an employee in the bargaining unit under section 24 is made applicable to an employee under this section, any seniority provision in the collective agreement, if any, that would apply to the employee under section 24 or in the employee’s contract of employment is void.

Amendment by parties

(7)The seniority provisions of a collective agreement may be amended by agreement between the bargaining agent for the bargaining unit and the employer subject to the following:

1. Despite any such amendment subsections 33 (3) and (4), as applicable under subsection (5), still apply.

2. The provisions as amended must provide that, to the extent possible, the seniority of employees is based solely on a common definition of seniority and determined with reference to the bargaining unit as a whole and not to only a part or parts of it.

Amendment by Board

(8)The Board may, upon application of the employer or the bargaining agent for the bargaining unit, amend the seniority provisions of a collective agreement unless the provisions apply, under section 24, to all the employees in the bargaining unit subject to the following:

1. Despite any such amendment subsections 33 (3) and (4), as applicable under subsection (5), still apply.

2. Unless the Board considers it inappropriate in the circumstances, the provisions as amended must provide that, to the extent possible, the seniority of employees is based solely on a common definition of seniority and determined with reference to the bargaining unit as a whole and not to only a part or parts of it.

Certain other provisions

(9)If the seniority provisions of a collective agreement are made applicable to all employees in a bargaining unit under this section, the following apply:

1. The provisions of that collective agreement respecting the posting of vacancies and new positions, promotions, transfers of employees, lay-offs and recalls also apply to the employees in the bargaining unit.

2. Any other provisions of that collective agreement that the employer and bargaining agent agree should apply, also apply to the employees in the bargaining unit.

3. Subsections (7) and (8) apply, with necessary modifications, to provisions applicable under paragraph 1 or 2.

Section ceases to apply

(10)This section ceases to apply when the first collective agreement is made after notice to bargain is given in the following circumstances:

1. A party gives notice to bargain under this Act.

2. A party to a collective agreement continued under subsection 24 (2), a composite agreement or a replacement agreement gives notice to bargain under subsection 47 (2) of the Fire Protection and Prevention Act, 1997 or section 59 of the Labour Relations Act, 1995.

Definition

(11)In this section,

“seniority provisions” means provisions that give employees rights that depend upon their seniority. 1997, c. 21, Sched. B, s. 25.

Grievance provisions

26. (1)This section applies if a new bargaining unit is established or the description of a bargaining unit is changed by an agreement under section 20 or an order under section 22.

If one collective agreement applies

(2)If only one collective agreement applies to any employees in the bargaining unit, the grievance provisions in it apply to all employees in the bargaining unit.

If two or more agreements apply

(3)If two or more collective agreements containing grievance provisions apply to employees in the bargaining unit the following apply:

1. If the bargaining agent representing the employees in the bargaining unit was a party to one of the collective agreements immediately before the changeover date, the grievance provisions contained in that collective agreement apply to all employees in the bargaining unit.

2. If the bargaining agent representing the employees in the bargaining unit was a party to more than one of the collective agreements immediately before the changeover date, the grievance provisions of the collective agreement containing the seniority provisions that apply under paragraph 2 of subsection 25 (3) apply to the employees in the bargaining unit.

New bargaining agent

(4)If two or more collective agreements apply to employees in the bargaining unit but the bargaining agent representing the employees in the bargaining unit was not a party to any of them immediately before the changeover date, the grievance provisions of the collective agreement containing the seniority provisions that apply under subsection 25 (4) apply to the employees in the bargaining unit.

Other grievance provisions voided

(5)If a grievance provision that would not apply to an employee in the bargaining unit under section 24 is made applicable to an employee under this section, any grievance provision in the collective agreement, if any, that would apply to the employee under section 24 or in the employee’s contract of employment is void.

Section ceases to apply

(6)This section ceases to apply when the first collective agreement is made after notice to bargain is given in the following circumstances:

1. A party gives notice to bargain under this Act.

2. A party to a collective agreement continued under subsection 24 (2), a composite agreement or a replacement agreement gives notice to bargain under subsection 47 (2) of the Fire Protection and Prevention Act, 1997 or section 59 of the Labour Relations Act, 1995.

Definition

(7)In this section,

“grievance provision” means a provision that sets out a grievance procedure including the procedure for arbitrating a grievance and any restrictions on the right to grieve. 1997, c. 21, Sched. B, s. 26.

Application to Board, dispute re s. 24, 25 or 26

27.If a dispute arises about the application of section 24, 25 or 26, the employer or the bargaining agent may apply to the Board for an order resolving the dispute. 1997, c. 21, Sched. B, s. 27.

Restriction re certification applications

28. (1)Subsections (2) and (3) apply if an order under section 22 is requested.

Same, employees not in bargaining unit

(2)During the period beginning 10 days after the order is requested and ending when the order is made, no person may apply for certification of a bargaining agent to represent employees of the successor employer who are not members of a bargaining unit when the order is requested.

Same, employees in bargaining unit

(3)During the period beginning when the order is requested and ending when the first collective agreement between the parties comes into operation after a collective agreement continued under subsection 24 (2) or a composite agreement expires, no person may apply,

(a) for a declaration that the trade union no longer represents the employees in the bargaining unit; or

(b) for the certification of a different bargaining agent to represent the employees in the bargaining unit.

Thereafter, the right of a person to make the application is determined under the Act that otherwise governs collective bargaining in respect of the employees.

Same, agreement

(4)Subsection (3) applies with necessary modifications if an agreement under section 20 is in effect and, for that purpose, the applicable period begins when the agreement comes into effect. 1997, c. 21, Sched. B, s. 28.

Replacing Collective Agreements

Agreement to replace composite agreement

29. (1)A successor employer and the bargaining agent may agree to replace the composite agreement with respect to a bargaining unit with one of the agreements included in it and may amend the replacement agreement.

Seniority

(2)Section 33 applies to the replacement agreement if it provides that employees have rights that depend upon their seniority.

Request for order re seniority

(3)If the replacement agreement provides that employees have rights that depend upon their seniority, the successor employer or the bargaining agent may request the Board to determine the method to be used to determine employees’ seniority. 1997, c. 21, Sched. B, s. 29.

Order to replace composite agreement

30. (1)Upon the request of both parties, the Board may by order replace a composite agreement with respect to a bargaining unit with one of the agreements included in the composite agreement.

Restriction re order

(2)The Board shall select as the replacement agreement the included agreement that is the most appropriate one to apply with respect to all employees in the bargaining unit.

Same

(3)The order must not amend the replacement agreement except as permitted by this section.

Definition of bargaining unit

(4)The order may amend the description of the bargaining unit to reflect the related agreement under section 20 or order under section 22.

Seniority

(5)Section 33 applies to the replacement agreement if it provides that employees have rights that depend upon their seniority.

Term of replacement agreement

(6)The order may specify that the replacement agreement ceases to operate one year after the date on which the related agreement under section 20 or order under section 22 comes into effect or on such other date as the order may provide.

Same re police

(7)Subsection (6) shall not be interpreted so as to affect the operation of section 129 of the Police Services Act. 1997, c. 21, Sched. B, s. 30.

Notice to bargain, continued agreements

31. (1)A party to a collective agreement continued under subsection 24 (2), a composite agreement or, if both parties agree in writing that it may be done, a replacement agreement, may give notice in writing to the other party of its desire to bargain with a view to replacing the existing collective agreement with a new collective agreement.

Effect of notice

(2)The notice has the same effect as a notice given under subsection 47 (2) of the Fire Protection and Prevention Act, 1997 or section 59 of the Labour Relations Act, 1995.

Termination of existing agreement

(3)The existing collective agreement ceases to operate 90 days after the day on which the notice is given. 1997, c. 21, Sched. B, s. 31.

Application of s. 43 of the Labour Relations Act, 1995

32. (1)Section 43 of the Labour Relations Act, 1995 applies, with necessary modifications, with respect to the new collective agreement referred to in subsection 31 (1) as though the new collective agreement was a first collective agreement.

Same

(2)References to length of service in clause 43 (14) (b) of the Labour Relations Act, 1995 shall be deemed, for the purposes of the application of that clause under subsection (1), to be references to seniority rights.

Factors to consider

(3)In making a decision under section 43 of the Labour Relations Act, 1995, as that section applies under subsection (1), a board of arbitration shall take into consideration all factors it considers relevant, including the following criteria:

1. The employer’s ability to pay in light of its fiscal situation.

2. The extent to which services may have to be reduced, in light of the board’s decision, if current funding and taxation levels are not increased.

3. The economic situation in Ontario and in the part of Ontario where the employer is located.

4. A comparison, as between the employees and other comparable employees in the public and private sectors, of the terms and conditions of employment and the nature of the work performed.

5. The employer’s ability to attract and retain qualified employees.

Application of section

(4)This section applies only to parties whose labour relations are governed by the Labour Relations Act, 1995 and to whom the Hospital Labour Disputes Arbitration Act does not apply. 1997, c. 21, Sched. B, s. 32.

Seniority of Employees in a Bargaining Unit

Mandatory rules for determining seniority

33.  (1)  Subject to subsection (2), the requirements set out in this section apply with respect to a collective agreement that provides that employees have rights that depend upon their seniority. 1997, c. 21, Sched. B, s. 33 (1).

Same

(2)  The requirements apply only with respect to the first collective agreement after notice to bargain is given in the following circumstances:

1. A party gives notice to bargain under this Act.

2. A party to a collective agreement continued under subsection 24 (2), a composite agreement or a replacement agreement gives notice to bargain under subsection 47 (2) of the Fire Protection and Prevention Act, 1997, section 59 of the Labour Relations Act, 1995 or section 119 of the Police Services Act. 1997, c. 21, Sched. B, s. 33 (2).

Seniority for prior employment

(3)  If an employee in the bargaining unit was employed by a predecessor employer immediately before the changeover date but was not a member of a bargaining unit, the employee shall be accorded seniority on the same basis as other employees in the bargaining unit and, without restricting generality of the foregoing,

(a) if the collective agreement provides that seniority includes all periods of employment with the employer and all periods of employment with a predecessor employer, his or her seniority shall include all periods of employment with the employer and all periods of employment with a predecessor employer;

(b) if the collective agreement provides that seniority includes all periods of employment in the bargaining unit of the employer and all periods of employment in a bargaining unit of a predecessor employer, his or her seniority shall include all periods of employment in the bargaining unit of the employer and all periods of employment with a predecessor employer in a position having duties, responsibilities and other attributes such that, if the employment were with the employer, the employee would have been a member of the bargaining unit; and

(c) if the collective agreement provides that seniority includes all periods of employment in the bargaining unit or in a similar bargaining unit of the employer and all periods of employment in a bargaining unit of a predecessor employer, his or her seniority shall include all periods of employment in the bargaining unit or similar bargaining unit of the employer and all periods of employment with a predecessor employer in a position having duties, responsibilities and other attributes such that, if the employment were with the employer, the employee would have been a member of the bargaining unit or similar bargaining unit. 1997, c. 21, Sched. B, s. 33 (3).

Exception, certain municipal employees

(4)  Subsection (3) does not apply with respect to an employee to whom an order made under subsection 12.9 (5) of Ontario Regulation 143/96 (“Powers of the Minister or a Commission for the Implementation of a Restructuring Proposal”) applies. 1997, c. 21, Sched. B, s. 33 (4); 2002. c. 17, Sched. F, Table.

(5)  Repealed: 2006, c. 35, Sched. D, s. 13.

Order re replacement agreement

34.  (1)  Following a request under subsection 29 (3) or when making an order under section 30, the Board may by order determine the method to be used to determine the seniority of the employees in a bargaining unit for the purposes of a replacement agreement. 1997, c. 21, Sched. B, s. 34 (1).

Presumption of dovetailing, unit wide seniority

(2)  Unless the Board considers it inappropriate in the circumstances, an order under subsection (1) must require that, to the extent possible, the seniority of employees must be based solely on a common definition of seniority and determined with reference to the bargaining unit as a whole and not to only a part or parts of it. 1997, c. 21, Sched. B, s. 34 (2).

Mandatory rules

(3)  Subsections 33 (3) and (4) apply with respect to an order under subsection (1). 1997, c. 21, Sched. B, s. 34 (3); 2006, c. 35, Sched. D, s. 14.

Order to meet

(4)  Without making an order under subsection (1), the Board may order the parties to meet to endeavour to reach an agreement about the method to be used to determine the seniority of the employees. 1997, c. 21, Sched. B, s. 34 (4).

Order after notice to bargain

35.  (1)  After notice to bargain is given under this Act and before a collective agreement is executed, either party may request the Board to determine the method to be used to determine the seniority of the employees in the bargaining unit. 1997, c. 21, Sched. B, s. 35 (1).

Same

(2)  The Board may make an order respecting the method to be used to determine seniority. 1997, c. 21, Sched. B, s. 35 (2).

Same

(3)  Subsections 33 (3) and (4) and 34 (2) apply with necessary modifications with respect to an order under subsection (2). 1997, c. 21, Sched. B, s. 35 (3); 2006, c. 35, Sched. D, s. 15.

Order to meet

(4)  Without making an order under subsection (2), the Board may order the parties to meet to endeavour to reach an agreement about the method to be used to determine the seniority of the employees. 1997, c. 21, Sched. B, s. 35 (4).

Referral to arbitration

(5)  If matters in dispute between the parties have been referred to arbitration, the Board may refer the request to the arbitrator or arbitration board for resolution. 1997, c. 21, Sched. B, s. 35 (5).

Notice of order

(6)  If matters in dispute between the parties have been referred to arbitration and the Board makes an order under subsection (2), the employer shall promptly give a copy of the order to the arbitrator or arbitration board. 1997, c. 21, Sched. B, s. 35 (6).

Conflict

(7)  An order of the Board under subsection (2) prevails over a decision of an arbitrator or arbitration board to the extent of any conflict or inconsistency. 1997, c. 21, Sched. B, s. 35 (7).

Requirements after sale of a business

36.  (1)  This section applies only as provided under section 12 and only with respect to,

(a) a collective agreement between the employer of a business who sells it and a bargaining agent, if the collective agreement binds the person to whom the business is sold under subsection 69 (2) of the Labour Relations Act, 1995;

(b) if there is no collective agreement described in clause (a) when the business is sold, the first collective agreement between the person to whom the business is sold and the bargaining agent, if any, entitled under subsection 69 (3) of the Labour Relations Act, 1995 to represent the employees in the bargaining unit; and

(c) a collective agreement between an employer to whom a business is sold and a bargaining agent. 1997, c. 21, Sched. B, s. 36 (1).

Mandatory rules

(2)  Subsections 33 (3) and (4) apply with necessary modifications with respect to a collective agreement that provides that employees have rights that depend upon their seniority. 1997, c. 21, Sched. B, s. 36 (2); 2006, c. 35, Sched. D, s. 16.

Request for order

(3)  The person to whom the business is sold or the bargaining agent may request the Board to determine the method to be used to determine the seniority of the employees in the bargaining unit. 1997, c. 21, Sched. B, s. 36 (3).

Same

(4)  The Board may make an order respecting the method to be used to determine seniority. 1997, c. 21, Sched. B, s. 36 (4).

Presumption of dovetailing, unit wide seniority

(5)  Unless the Board considers it inappropriate in the circumstances, an order under subsection (4) must require that, to the extent possible, the seniority of employees must be based solely on a common definition of seniority and determined with reference to the bargaining unit as a whole and not to only a part or parts of it. 1997, c. 21, Sched. B, s. 36 (5).

Order to meet

(6)  Without making an order under subsection (4), the Board may order the parties to meet to endeavour to reach an agreement about the method to be used to determine the seniority of the employees. 1997, c. 21, Sched. B, s. 36 (6).

Application of other provisions

(7)  Subsections 35 (5) to (7) apply with necessary modifications with respect to a request under subsection (3). 1997, c. 21, Sched. B, s. 36 (7).

Administration and Enforcement

Ontario Labour Relations Board

37.  (1)  Subject to this section, sections 110 to 118 of the Labour Relations Act, 1995 apply, with necessary modification, with respect to anything the Board does under this Act. 1997, c. 21, Sched. B, s. 37 (1).

No panels

(2)  Where the Board is given authority to make a decision, determination or order under this Act, it shall be made,

(a) by the chair or, if the chair is absent or unable to act, by the alternate chair; or

(b) by a vice-chair selected by the chair in his or her sole discretion or, if the chair is absent or unable to act, selected by the alternate chair in his or her sole discretion. 1997, c. 21, Sched. B, s. 37 (2).

Labour relations officers

(3)  The Board may authorize a labour relations officer to inquire into any matter that comes before it under this Act and to endeavour to settle any such matter. 1997, c. 21, Sched. B, s. 37 (3).

Rules to expedite proceedings

(4)  The Board has, in relation to any proceedings under this Act, the same powers to make rules to expedite proceedings as the Board has under subsection 110 (18) of the Labour Relations Act, 1995. 1997, c. 21, Sched. B, s. 37 (4).

Conflict with Statutory Powers Procedure Act

(5)  Rules made under subsection (4) apply despite anything in the Statutory Powers Procedure Act. 1997, c. 21, Sched. B, s. 37 (5).

Rules not regulations

(6)  Rules made under subsection (4) are not regulations within the meaning of Part III (Regulations) of the Legislation Act, 2006. 1997, c. 21, Sched. B, s. 37 (6); 2006, c. 21, Sched. F, s. 136 (1).

Interim orders

(7)  The Board may make interim orders with respect to a matter that is or will be the subject of a pending or intended proceeding. 1997, c. 21, Sched. B, s. 37 (7).

Timing of decisions, etc.

(8)  The Board shall make decisions, determinations and orders under this Act in an expeditious fashion. 1997, c. 21, Sched. B, s. 37 (8).

Determinations final and binding

(9)  A decision, determination or order made by the Board is final and binding for all purposes. 1997, c. 21, Sched. B, s. 37 (9).

Application of other provisions

(10)  Subsections 96 (4), (6) and (7) and sections 122 and 123 of the Labour Relations Act, 1995 apply, with necessary modifications, with respect to proceedings before the Board and its decisions, determinations and orders. 1997, c. 21, Sched. B, s. 37 (10).

Arbitration Act, 1991

38.The Arbitration Act, 1991 does not apply with respect to a proceeding before the Board. 1997, c. 21, Sched. B, s. 38.

General

Conflicting rules: Acts, regulations, human resources plans

39.  (1)  In the event of a conflict or inconsistency between this Act or a regulation made under this Act and any other Act, this Act or the regulation prevails. 1997, c. 21, Sched. B, s. 39 (1).

Same, hospital sector

(2)  In the event of a conflict between this Act and a human resource plan agreed upon by an employer and a bargaining agent, the plan prevails except in the following circumstances and respects:

1. Section 33 of this Act prevails over a plan. That section does not prevail over a plan that is agreed upon before this subsection comes into force. However, that section prevails over such a plan if the plan is amended on or after the date this subsection comes into force.

2. Repealed: 2006, c. 35, Sched. D, s. 17.

3. A plan does not prevail over this Act in such circumstances as may be prescribed. It does not prevail over such provisions of this Act as may be prescribed. 1997, c. 21, Sched. B, s. 39 (2); 2006, c. 35, Sched. D, s. 17.

Regulations

40.  (1)  The Lieutenant Governor in Council may make regulations,

(a) Repealed: 2006, c. 35, Sched. D, s. 18 (1).

(b) governing how this Act applies with respect to employees of a predecessor employer who perform construction work and who, immediately before the changeover date, are in a bargaining unit with respect to which a construction union has bargaining rights;

(c) prescribing anything that must or may be prescribed under this Act;

(d) defining, for the purposes of this Act or any part of it, any term or expression that is not defined in this Act;

(e) governing any matter necessary or advisable to carry out the purposes of this Act. 1997, c. 21, Sched. B, s. 40 (1); 2006, c. 35, Sched. D, s. 18 (1).

Definitions in cl. (1) (b)

(2)  In clause (1) (b),

“construction union” means a trade union or council of trade unions, both as defined in section 126 of the Labour Relations Act, 1995 or an affiliated bargaining agent or employee bargaining agency, both as defined in section 151 of that Act; (“syndicat de la construction”)

“construction work” means constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site. (“travaux de construction”) 1997, c. 21, Sched. B, s. 40 (2).

Construction regulations

(3)  A regulation under clause (1) (b) may,

(a) vary the application of this Act;

(b) prescribe provisions to operate in place of any part of this Act;

(c) prescribe provisions to operate in addition to this Act. 1997, c. 21, Sched. B, s. 40 (3).

Same

(3.1)  Without limiting the generality of clause (1) (c), a regulation made under clause (1) (c) may,

(a) prescribe a health services integration as an event to which this Act applies in accordance with section 10;

(b) prescribe the Crown for the purposes of clause 12 (1) (d). 2006, c. 4, s. 42 (11); 2006, c. 35, Sched. D, s. 18 (2).

Scope of regulations

(4)  A regulation made under clause (1) (e) may be substantive, procedural or administrative in nature. 1997, c. 21, Sched. B, s. 40 (4).

General or specific regulations, classes

(5)  A regulation made under this section may,

(a) be general or specific in its application;

(b) apply in respect of any class of person, party, organization or activity. 2006, c. 4, s. 42 (12).

Retroactive effect

(6)  A regulation may be made retroactive to a date that is not earlier than the date on which this subsection comes into force. 1997, c. 21, Sched. B, s. 40 (6).

41.  Omitted (provides for coming into force of provisions of this Act). 1997, c. 21, Sched. B, s. 41.

42.  Omitted (enacts short title of this Act). 1997, c. 21, Sched. B, s. 42.

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